The Attorney General and the Director of Public Prosecutions failed to respond to Petition 447 of 2019, three months after the case had been filled. This emerged during the mention of the petition on 4 March 2019. The petition challenges the constitutionality of provisions of the law that criminalize deliberate transmission and or exposure of HIV. The Court stated that it will give directions to the case on 27 March 2019.
The mention comes in the backdrop of the Positive Justice advocacy campaign launched on 10 December 2018, the Human Rights Day. This is symbolic to the aspirations of the campaign that seeks to secure the human rights of people living with HIV, through the petition. KELIN alongside six other petitioners is challenging the constitutionality of Section 26 of the Sexual Offences Act (SOA) of 2006. This law criminalizes deliberate transmission and or exposure of life-threatening sexually transmitted diseases, including HIV.
The petitioners highlight how the provision of the law is unconstitutional by being vague and incapable of enforcement and for violating the right to protection from discrimination.
KELIN’s intention in filing this case is to highlight to the court how Section 26 of the SOA violates the right to: freedom from discrimination; freedom from cruel, inhuman and degrading treatment; to dignity; and to health, as provided for in the Constitution of Kenya.
KELIN will also highlight the possible negative impact that the section has on public health efforts to promote regular testing of HIV and STIs; how the section criminalizes low and no risk sexual activities; and how the section has the potential for discriminatory and irrational enforcement.
It is our hope that after the court listens to the petition, it will declare that Section 26 of the SOA is inconsistent with article 2(4) of the Constitution. Further, the section is wholly unconstitutional and should be struck down from the statute.
The High Court will now mention the case on 27 March 2019. It will give directions on how the petition will proceed. This includes the application seeking to conceal the identities of the six main petitioners.
For more information, please follow the links below:
- Press statement
- Positive Justice Campaign Concept Note
- Positive Justice Campaign Launch Agenda
- Petition 447 of 2018
To contribute to the discussions on this forum, follow KELIN on our social media platforms using these hashtags: #PositiveJustice and #Justice2Health.
- Twitter: @KELINkenya
- Facebook: http://www.facebook.com/kelinkenya
For more information, contact:
Ted Wandera
Program Officer, KAP
Kenya Legal and Ethical Issues Network on HIV/AIDS (KELIN)
4th Floor, Somak Building, Mombasa Road
Tel +254202515790; Cell +254788220300
Email: twandera@kelinkenya.org
